Judges must weigh cultural factors in native sentencing, court rules

The Supreme Court of Canada in Ottawa on Friday, February 17, 2012. (Sean Kilpatrick/THE CANADIAN PRESS/Sean Kilpatrick/THE CANADIAN PRESS)

The Supreme Court of Canada has issued an iron-clad edict that sentencing judges must search out lenient or creative sentences for aboriginal offenders that recognize the oppressive cultural conditions many have grown up with.

The court said that some judges have mistakenly shied away from probing the historical circumstances of aboriginal offenders. It said the result is that the promise of a 1998 decision, Regina v Gladue, that mandated distinctive treatment for aboriginal offenders based on sensitivity to their history has not been realized; prisons remain packed with a disproportionate number of aboriginal inmates.

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“The failure to apply the Gladue principles in any case would also result in a sentence that is not fit and is not consistent with the fundamental principle of proportionality,” Mr. Justice Louis LeBel said for a 6-1 majority.

“Application of the Gladue principles is required in every case involving an aboriginal offender, including the breach of a long-term-supervision order,” he said. “A failure to do so constitutes an error justifying appellate intervention.”

Friday’s rulings concerned the cases of two Inuk men with a history of grave substance abuse and violent offences. The decisions were greeted enthusiastically in the aboriginal community, where disappointment has grown in the years since the Gladue ruling. The cases had invited the court to take stock of whether the Gladue decision has had the desired effect.

Jonathan Rudin, program director of Aboriginal Legal Services of Toronto, said the decisions are at least as exciting as the Gladue ruling itself, given how courts have been backsliding from the principles it espoused.

“The impact of Gladue across the country has been very mixed,” Mr. Rudin said. “In some jurisdictions, it has been embraced, in many others, it has virtually been ignored. This decision should help ensure that it becomes the reality across the country.”

Judge LeBel said that special “Gladue reports” should be prepared for all aboriginal offenders that specify details of their backgrounds.

“When sentencing an aboriginal offender, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and, of course, higher levels of incarceration for aboriginal peoples,” he said.

Judge LeBel said that the result will not be an automatic sentencing discount, but a genuine attempt by the courts to approach the person’s past sensitively “in each and every case regardless of the seriousness of the offence.”

Mr. Rudin noted that the rulings have removed a perceived need for aboriginal offenders to prove that their “personal experience of colonialism” was linked to their crimes.

In a dissenting opinion, Mr. Justice Marshall Rothstein expressed concerns that protecting the public must have paramount importance when it comes to sentencing dangerous aboriginal offenders.

The appellants – Manasie Ipeelee and Frank Ralph Ladue – are serving long-term-offender orders, a form of conditional release from prison that allows authorities to return the offender to custody quickly if conditions are breached. Orders can be imposed for up to 10 years.

Both men remain subject to the orders. However, the Supreme Court reduced Mr. Ipeelee's sentence for a breach of his order to one year from three. It left intact Mr. Ladue's one-year sentence for breaching his order.

Mr. Ipeelee, 39, was raised in Iqaluit, Nunavut. A lifelong alcoholic with a long record of thefts, assaults and sexual assaults, he began consuming alcohol when he was 11 and has been in and out of jail or detention since 1985.

Mr. Ladue, 49, is a member of the small community of Ross River, Yukon. His parents had severe alcohol problems and died when he was very young. At the age of 5, he was sent to residential school, where he alleges he suffered physical, sexual, emotional and spiritual abuse.

Mr. Ladue accumulated 40 criminal convictions, including robbery and sexual assault. Since being released in 2006 from a three-year sentence, he has served considerable time behind bars for breaches of his long-term-offender order.